THE QUEEN v. SO MA KWAI

Headnote

Drugs: simple possession: quantum of sentence on plea: number of packets or quantum of drug largely irrelevant: comments on availability of places in DATC

THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 466 OF 1992

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J U D G M E N T

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1. The applicant, So Ma Kwai, was convicted on his own plea before Mr. Venning at Fanling Magistracy of an offence contrary to section 8 of the Dangerous Drugs Ordinance, that is: simple possession of dangerous drugs. The particulars of the charge were that, on 22nd February 1992, at the podium near Tai Tak House, Tai Yuen Estate in Tai Po, he had in his possession a dangerous drug namely 4.64 grammes of a mixture containing 1.94 grammes of salts of esters of morphine.

2. He originally pleaded not guilty to that offence on 17th March. He was then represented by member of the Duty Lawyer Scheme. On 27th April he entered a plea of guilty at that time he was unrepresented.

3. The trial magistrate adjourned the matter in order to provide himself, as he is obliged to do, with a Drug Addiction Treatment Centre Report before considering the quantum of sentence. That report was received and the Commissioner of Correctional Services did not recommend any further Addiction Treatment Centre orders be made in respect of the applicant. He had been the subject of three previous orders which clearly were ineffective. The Commissioner also indicated that the Drug Addiction Treatment Centre is 26% over capacity.

4. In parenthesis, I would express my concern at the fact that the Drug Addiction Treatment Centre is 26% over capacity. This seems to suggest that there are insufficient facilities in Hong Kong for the treatment of drug addicts. This is not intended as any criticism of the Commissioner for Correctional Services but, clearly, consideration should be given to the question of finance to provide proper and adequate treatment facilities. Rehabilitation in the past has been a very effective method of reducing the drug population which in turn impinges on the menace of the drug trade. The capability of court to send drug addicts to the Drug Addiction Centre is a very important arm of the sentencing process and it would be unfortunate if the courts were to be deprived of that sentencing option through lack of places.

5. Coming back to the applicant here, he has a previous record including two specific drug offences. One of them, as Miss Ip, who appears for the Crown has pointed out, was for possession of dangerous drugs for the purpose of unlawful trafficking. That was in 1987 when he received a sentence of 3 months consecutive to the sentence he was already serving. He has also substantial number of other criminal offences such as burglary and loitering which, given the sentences imposed in certain those cases, seem to emanate from his addiction.

6. Mr. McLanachan, who appears in this court for the applicant, has first of all drawn attention to The Attorney General v. Chan Tak King, A.R. No. 21 - and A.R. No. 22 of 1988 - the judgment being handed down on 6th June 1989. The Court of Appeal in that case considered the nature of the sentence to be imposed on a plea of guilty to simple possession of drugs and made reference to a number of previous decisions of the courts in relation to it. Fuad, V.P., in delivering the judgment of the court, thought that the proper range, judging from the sentences that were then being imposed, was between 6 to 9 months imprisonment. Mr. McLanachan also drawn attention to two Magisterial Appeals: R. v. Tsui Wai Kuen 809 of 1991 and R. v. Lee Chi Wai 810 of 1991. In Lee Chi Wai Duffy, J. indicated that the normal range of sentence in 1991 imposed on plea on those with a history of multiple offence of possession of drugs is in the range of 9 to 12 months. I would accept this as being so and, certainly, the appellant here falls within that range.

7. In passing the sentence he did the magistrate made reference to that which he described as "detrimental matters to the appellant"; first: that he had eleven previous recorded convictions and two unrecorded convictions, three of them being drug related - he described the others as quite serious type of offences - second: "significant number of straws" in the appellant's possession.

8. In the appellant's favour he bore in mind as he should the plea of guilty and that the conviction was a section 8 conviction.

9. It appears to me that he placed undue emphasis on the number of straws in arriving at the sentence to be imposed. This was an offence of simple possession and the quantum of the drugs and the number of packets or straws has little if any relevance to the sentence to be imposed. They are simply indicative of the strength of the addiction. There is no offence known to law of "unproven trafficking".

10. As Fuad, V.P. said in Chan Tak King, sentiments which I would respectfully endorse:

"In conclusion, we would state our view that the fact that an offender is a drug addict does not justify a sentence which is out of proportion to the gravity of the offence he has committed so that he may receive treatment in prison. However, the sort of sentence we suggest should be considered for persistent drug possession offenders would offer some chance of benefit being derived from the detention. In other words, if an offender's drug addiction can be treated in prison so much the better but no sentence should be passed which is disproportionate to the facts of the case when any mitigating circumstances are taken into account."

11. It may well be that the magistrate was influenced by the number of straws in imposing 12 months and for that reason I think this to be a sentence amenable to reduction.

12. I would allow this appeal, set aside the sentence of 12 months imprisonment and substitute one of 9 months imprisonment.